Judge Wingate to Rule on Whether Federal Government Protects Google or States Protect Consumers

Right on cue, Jeff John Roberts gave his usual Googley spin to Mississippi’s scrappy Attorney General Jim Hood’s investigation into Google: Google and Mississippi meet in court over secret MPAA lobbying. Roberts story first posted almost on the dot of the commencement of the hearing today in Judge Wingate’s courtroom in Jackson, Mississippi. Like most of Roberts’ “reporting” on anything relating to the music or movie business, you can get a good idea of where Google is at just by reading the headline. No need to suffer through the Satanic idolatry he wraps around the MPAA and the RIAA who vie for status as the Great Satan. 1999 called and wants its anti-artist rhetoric back. As we know, Lars was right.

So sure enough, Google launched their attack on Hood largely based largely on documents stolen in North Korea’s hack of Sony Pictures. Try as they might, Google is not going to remake North Korea government hackers into the image of St. Edward Snowden. Google is still asking a federal judge to take judicial notice of stolen documents that surfaced through one of the first acknowledged cyberattacks on the United States, albeit documents that were massaged through the mainstream press. (Which has been curiously silent on the Hood case.)

Google contends that Congress made it immune from Hood’s investigation when it passed the Communications Decency Act in 1996. That law says Internet service providers aren’t responsible for content provided by others. Neiman said everything Hood has cited is third-party content. “There are real, concrete things that Google did to change its constitutionally protected editorial judgment to try to mollify the attorney general,” he said, saying the company changed its autocomplete filter and began limiting ads on some YouTube videos.

Well that’s good, why did Google make the changes the it’s “constitutionally protected editorial judgment” (aka red flag knowledge)? I always thought that Google flew its red flag high and didn’t exercise any control over anything? Google would like you to believe that Hood’s entire case is about third party liability, meaning the safe harbors that Google relies on in the Communications Decency Act and the DMCA. But those safe harbors require that Google didn’t know or shouldn’t have known of illegal activity, i.e., knowledge that was like a red flag. And they don’t excuse criminal behavior, even in a world where the U.S. Justice Department apologizes to Google for enforcing the law.

Here’s a couple of examples of questions from Hood’s subpoena that are but a few demonstrations of why Google’s position is simply false.

See? Google’s communications with advertisers regarding Google’s review of websites or YouTube videos in which ads may appear? Something like this: Communications about terminating or removing accounts? You mean like Google trumpets in their piracy report? Remember–this is Google’s communications about advertising fraud. That evidently happened 46,000 times in 2012 alone. Google’s own lobbyist also told Congress that Google had done the same in prior years: What’s the problem? They trumpet it on the one hand and hide it on the other. Here’s another example: You mean like this? Or maybe this? But here’s the problem with the idea that everything in Hood’s subpoena violates Google’s “constitutionally protected editorial judgment”. First of all, most of the questions have to do with Google’s non-prosecution agreement with the Criminal Division of the U.S. Department of Justice for collaborating with sellers of drugs sold illegally online and advertised by Google’s ad networks. That’s the one where Google paid $500,000,000 of the stockholders money to keep their senior management team from being indicted. And for which the stockholders–including some Mississippi stockholders, no doubt–are suing Google right this very minute. But Hood can feel good about one aspect of this: When Google’s Executive Chairman Eric Schmidt testified before the Senate Antitrust Subcommittee, he refused to answer Senator John Cornyn’s questions about Google’s involvement with the illegal sale of drugs–“on the advice of counsel” being Google’s head lawyer David Drummond who was present and with whom Schmidt consulted in real time. So Google really, really doesn’t want to answer any questions about the drug problem. Particularly since Google is being sued by its stockholders over the exact same facts. And speaking of, there’s one of many questions that Hood raised in his subpoena that has nothing to do with third parties or the drugs case. It has to do with some bizarre language in the proposed settlement with Google’s stockholders. This is the paragraph in question:

2.7 Criminal Activity Reporting Google’s General Counsel shall be responsible for reviewing every situation in which a Google employee is convicted of a felony under U.S. federal or state criminal statutes in connection with his employment by Google and for reporting to the Board (or an appropriate committee of the Board) with respect to that violation. Presumptively, any employee convicted of a felony under a U.S. federal or state criminal statute in connection with his employment by Google shall be terminated for cause and receive no severance payments in connection with the termination.If the General Counsel determines that such termination is not warranted, he shall so recommend to the Board (or an appropriate committee of the Board), which will act upon his recommendation in its discretion.

So why is that question “constitutionally protected editorial judgment”? It looks like a legitimate concern of a state attorney general that somebody’s got something pretty nasty to hide.

Assistant Attorney General Doug Miracle said federal law does not make Google immune from investigation. The law might be a defense against a lawsuit, he said, but Hood has filed no such suit and is still trying to determine facts. “They’re asking the court to tell the attorney general he cannot investigate,” Miracle told Wingate. The state lawyer denied that Hood was “chilling” Google’s speech rights. “The only thing that would be chilled would be the attorney general’s ability to enforce the consumer protection laws,” Miracle said…. Miracle said that Neiman’s discussion of the movie industry was a “real red herring” and said Hood was only working with crime victims.